White v. Redman Corp.

• Decision Date: 05 August 2003
• Docket Number: Record No. 2954-02-2.
• Citation: 584 S.E.2d 462,41 Va. App. 287
• Parties: Steven L. WHITE v. REDMAN CORPORATION and Twin City Fire Insurance Company.
• Court: Virginia Court of Appeals

584 S.E.2d 462

41 Va. App. 287

Steven L. WHITE v. REDMAN CORPORATION and Twin City Fire Insurance Company.

Record No. 2954-02-2.

Court of Appeals of Virginia.

August 5, 2003.

Stephen T. Harper (Kerns, Kastenbaum & Reinhardt, P.L.C., on brief), Richmond, for appellant.

S. Vernon Priddy III (Sands Anderson Marks & Miller, on brief), Richmond, for appellees.

Present: BENTON, BUMGARDNER and McCLANAHAN, JJ.

McCLANAHAN, Judge.

Steven L. White (claimant) appeals a decision of the Virginia Workers' Compensation Commission denying his claim for compensation benefits after December 13, 2000. Claimant contends that the commission incorrectly held that (1) claimant was not entitled to a finding of a de facto award, and (2) claimant had a duty to market his residual capacity to work after December 13, 2000. For the reasons that follow, we affirm the decision of the commission.

I. Background

Claimant, a resident of New York, began working in Virginia as an ironworker with Redman Corporation, a bridge building company, in the fall of 1999. On February 23, 2000, claimant suffered multiple fractures to his pelvis, right elbow, right arm, right hand and legs due to an accidental fall from a bridge. Claimant was initially treated for his injuries by orthopedic surgeon Dr. Robert Adelaar. After discharge from the hospital, on March 3, 2000, claimant required home health care for approximately two months.

Employer began making voluntary payments on February 24, 2000 in the amount of $407.82, based on an average weekly wage of $611.73. On April 13, 2000, claimant filed a Claim for Benefits for accidental injury, seeking permanent disability benefits beginning February 24, 2000 and continuing. On July 14, 2000, employer sent claimant a proposed "Memorandum of Agreement" to pay benefits. The agreement form reflected that employer would pay temporary total benefits of $407.82 per week based on an average weekly wage of $611.73, consistent with the voluntary payments employer had been making since the day after the injury. A letter enclosed with the agreement form requested that claimant sign the agreement and return it to employer as soon as possible so it could be submitted to the commission.

On September 18, 2000, claimant sent letters to the commission and employer acknowledging receipt of the agreement form and disputing the employer's average weekly wage calculation. There was no evidence that the agreement form was ever signed by the claimant or that it was ever submitted to the commission.

On December 13, 2000, a doctor with whom claimant was consulting in New York, reported on a New York State Workers' Compensation form that claimant was able to perform light duty. Also on December 13th, claimant sent a letter to the commission requesting a continuance and acknowledging that employer was raising a defense of failure to market. The commission granted the request for continuance until September 24, 2001, when the matter went to hearing.

At hearing, the parties stipulated that, (1) claimant suffered a compensable injury by accident on February 23, 2000; (2) claimant made no effort to market any residual capacity since his accident; and (3) wage figures of a similarly situated employee of employer that were presented to the commission for the purpose of calculating claimant's average weekly wage were accurate. The deputy commissioner calculated claimant's average weekly wage at $809.91, determined that claimant was released to light duty on December 13, 2000, and found that claimant was required to market his residual capacity because there was no agreement as to compensation between the parties that would trigger a finding of a de facto award.

Both parties sought review of the deputy commissioner's decision. On October 18, 2002, the commission affirmed the award, ruling that a de facto award was not appropriate in this case and that claimant had a reasonable basis to conclude that he could perform some light duty as of December 13, 2000.

II. Analysis

In accordance with well established principles, we consider the evidence in the light most favorable to the party prevailing below. States Roofing Corp. v. Bush Constr. Corp., 15 Va.App. 613, 616, 426 S.E.2d 124, 126 (1993). "Factual findings of the commission that are supported by credible evidence are conclusive and binding upon this Court on appeal." So. Iron Works, Inc. v. Wallace, 16 Va.App. 131, 134, 428 S.E.2d 32, 34 (1993). The commission's findings, if supported by credible evidence or reasonable inferences drawn from the evidence, will not be disturbed upon review, even though the record may contain evidence to support a contrary finding. Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va.App. 276, 279, 348 S.E.2d 876, 877 (1986). Claimant contends that the evidence supports a finding of a de facto award because the parties stipulated that there was a compensable injury by accident and that employer made voluntary payments to claimant for a substantial period of time without filing a memorandum of agreement...